Opinion
DOCKET NO. A-4422-12T3
08-10-2015
IN THE MATTER OF THE TENURE HEARING OF RON TUITT, STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF PATERSON, PASSAIC COUNTY.
William F. Koy argued the cause for appellant/cross-respondent Ronald Tuitt (The Law Firm of William Koy, L.L.P., attorneys; Mr. Koy, William J. Koy, and Robert Skiba, on the briefs). Joanne L. Butler argued the cause for respondent/cross-appellant, State-Operated School District of the City of Paterson (Schenck, Price, Smith & King, LLP, attorneys; Ms. Butler, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Christopher Huber, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Maven. On appeal from the Department of Education, Docket No. 307-10/11. William F. Koy argued the cause for appellant/cross-respondent Ronald Tuitt (The Law Firm of William Koy, L.L.P., attorneys; Mr. Koy, William J. Koy, and Robert Skiba, on the briefs). Joanne L. Butler argued the cause for respondent/cross-appellant, State-Operated School District of the City of Paterson (Schenck, Price, Smith & King, LLP, attorneys; Ms. Butler, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Christopher Huber, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Ron Tuitt appeals the April 18, 2013 final administrative decision of the Commissioner of Education terminating his employment by respondent State-Operated School District of the City of Paterson (District). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Tuitt was a second-grade teacher at the District's School No. 13. He was placed on administrative leave on November 24, 2010, as the result of allegations that he engaged in conduct unbecoming a teaching staff member from 2006 through 2010. The allegations included: (1) urinating in a bottle in front of students; (2) having students transport the urine-filled bottle to flush its contents in the bathroom; (3) urinating in and around a trashcan in his classroom; (4) urinating in and around a trashcan in his classroom with students nearby; (5) exposing students to bodily waste/biohazardous materials; (6) inappropriately having students perform personal errands including carrying his crutches, swiping his building identification card, retrieving his mail, and getting him food from the cafeteria; (7) allowing students to sit in his motorized wheelchair; (8) failure to procure parental permission slips allowing their children to stay after school; (9) transporting students to their homes in his personal vehicle; (10) speaking with students on the telephone without permission; (11) insubordination; (12) insubordination; (13) inappropriate email contact with students and parents; (14) defamation of the principal; (15) violating board policy with respect to the underlying actions; (16) violating board policy regarding inappropriate staff conduct; and (17) other just cause for removal.
On February 4, 2011, Tuitt filed a complaint against the District and Michelle E. James, Ed.D., the principal of School No. 13. He alleged (1) violations of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49; (2) intentional infliction of emotional distress; (3) tortious interference with economic gain; (4) negligent misrepresentation; and (5) conspiracy. He sought a temporary restraining order preventing the District from removing him as a teacher. The request for temporary injunctive relief was denied, and the litigation was subsequently stayed pending disposition of the District's administrative action.
In October 2011, Donnie Evans, Ed.D., the District's superintendent, certified seventeen tenure charges against Tuitt to the Commissioner. Later that month, Tuitt responded to the charges. The Commissioner subsequently transferred the matter to the Office of Administrative Law (OAL) as a contested case.
An administrative law judge (ALJ) held hearings on the tenure charges during twelve hearing days from March 28 through October 2, 2012. The District presented eleven witnesses: (1) James Smith, the executive director of school security; (2) Marysol Berrios, the assistant superintendent for operations at the time of the events of this case; (3) James, the principal from July 2009 through June 2011 and then the District's assistant superintendent; (4) Dominick Torchia, a school security officer; (5) Jim Lopez, the school's chief custodian since January 12, 2009; (6) Norma Morales, a custodian employed by ABM and assigned to the school from 2002 through 2009; (7) Maria Alva, a custodian employed by ABM and assigned to the school since September 2010; (8) C.P., a nine-year-old in the fourth grade at the time of the hearing, who had been in Tuitt's class; (9) D.S., a thirteen-year-old in the sixth grade at the time of the hearing, who had been in Tuitt's class; (10) R.S.B., a fourteen-year-old at the time of the hearing, who had been in Tuitt's class; and (11) A.R., the mother of M.R., who was a student in Tuitt's class during the 2010-2011 academic year.
Tuitt presented four witnesses in addition to testifying on his own behalf: (1) R.T., the mother of A.G., who had been in Tuitt's class; (2) Steven DelMaestro, M.D., Tuitt's primary care physician; (3) Charles A. Ferrer, who was a sixth- and seventh- grade social studies teacher and the school's representative to the Paterson Education Association (PEA); and (4) Jo-Ann Carnemolla, the school's head secretary from 2000 through 2009.
Tuitt and the District filed post-hearing briefs following the end of the testimony. The record was closed on January 15, 2013.
The ALJ rendered her initial decision on March 1. She found that the District had proven fourteen of the seventeen tenure charges. The ALJ recommended revocation of Tuitt's tenure rights and his removal as a teacher for the District. Both parties filed exceptions to the ALJ's decision. The District filed a reply to Tuitt's exceptions. Tuitt's reply was filed late, and was not considered by the Commissioner, pursuant to N.J.A.C. 1:1-18.4(d).
The Commissioner issued his final agency decision on April 18. He adopted the ALJ's initial decision, finding that her "fact-finding analysis and conclusions as to the truth of the Board's allegations and the characterization of [Tuitt]'s behavior as insubordinate and unbecoming conduct to be fully supported by the record and consistent with applicable law." He further found "no basis in the record — which include[d] transcripts of 12 days of hearing — to reject either the ALJ's recitations of testimony or her determinations of witness credibility." As a result, the Commissioner adopted the ALJ's finding that Tuitt "is guilty of unbecoming conduct and insubordination, and that he violated Board Policies concerning conduct with students." The Commissioner dismissed Tuitt from his tenured position at the Paterson schools. This appeal followed.
The Commissioner also referred the matter to the State Board of Examiners, which is the licensing agency for teachers in New Jersey, for any action against Tuitt's certificate it deemed appropriate. See N.J.S.A. 18A:6-38. --------
II.
On appeal, Tuitt contends that the Commissioner's decision was arbitrary, capricious, and unreasonable, and not supported in the record. He focuses primarily on his disagreements with the ALJ's credibility and factual findings.
We have outlined our standard of review for an administrative agency adjudication as follows:
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). A court may reverse only if it "conclude[s] that the decision of the administrative agency is arbitrary, capricious, or unreasonable, or is not supported by substantial credible evidence in the record as a whole." J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div. 2000); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Outland v. Bd. of Trs., 326 N.J. Super. 395, 399 (1999). We accord a
"strong presumption of reasonableness" to an agency's "exercise of statutorily delegated responsibilities." City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
Our limited standard of review of administrative agency decisions is informed by three inquiries:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]
Where an agency's expertise is a factor, a court defers to that expertise, particularly in cases involving technical matters within the agency's special competence. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004).
"[J]udicial deference to administrative agencies stems from the recognition that agencies have the specialized expertise necessary to . . . deal[] with technical
matters and are 'particularly well equipped to read and understand the massive documents and to evaluate the factual and technical issues . . . .'" N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines Cnty. Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 474 (1984)). "'[W]here there is substantial evidence in the record to support more than one regulatory conclusion, it is the agency's choice which governs.'" Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001) (citation and internal quotation marks omitted) (quoting In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).
In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes, supra, 109 N.J. at 588. If, however, our review of the record leads us to conclude that the agency's finding is clearly erroneous, the decision is not
entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).
[In re Adoption of Amendments to Water Quality Mgmt. Plans, 435 N.J. Super. 571, 582-84 (App. Div.) (alterations in original), certif. denied, 219 N.J. 627 (2014).]
An administrative agency factfinder is entitled to reject testimony if he or she concludes "it is inherently incredible, or because it is inconsistent with other testimony or with common experience, or because it is overborne by other testimony." Congleton v. Pura-Tex Stone Corp., 53 N.J. Super. 282, 287 (App. Div. 1958). Regarding factual findings and credibility determinations,
[t]he governing standard is, of course, whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility. Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965). If the factual findings are supported by competent evidence, they will be upheld. Atkinson v. Parsekian, 37 N.J. 143, 149 (1962); Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 36 (1966); Szumski v. Dale Boat Yards, Inc., 48 N.J. 401, 410 (1967). It is not ordinarily our function to weigh the evidence, to determine the credibility of witnesses, to draw inferences and conclusions from the evidence, and to resolve conflicts therein. Mead Johnson andFactual findings "are binding on appeal when supported by adequate, substantial, credible evidence," with deference being particularly appropriate "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Co. v. South Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967).
[In re Grossman, 127 N.J. Super. 13, 22-23 (App. Div.), certif. denied, 65 N.J. 292 (1974).]
An agency head is not bound by the factual findings and legal conclusions of an ALJ unless otherwise provided by statute. N.J.A.C. 1:1-18.1(c). He or she reviews the ALJ's decision "de novo . . . based on the record" before the ALJ. In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). Nevertheless, an agency head may only reject an ALJ's credibility findings if he or she "determine[s] from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c). In this case, following his review of the record, the Commissioner adopted the ALJ's finding of fact, including her credibility findings, as well as her conclusions of law.
Tenure acts as a protection of "teachers from dismissal for 'unfounded, flimsy or political reasons.'" Spiewak v. Bd. of Educ., 90 N.J. 63, 73 (1982) (quoting Zimmerman v. Newark Bd. of Educ., 38 N.J. 65, 71 (1962), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963)). A tenured teacher cannot be dismissed from employment "except for inefficiency, incapacity, unbecoming conduct, or other just cause." N.J.S.A. 18A:6-10. The agency bringing tenure charges must prove the charges by a "fair preponderance of the evidence." In re Polk, 90 N.J. 550, 560 (1982). The evidence "'need not have the attribute of certainty, but it must be well founded in reason and logic.'" Lesniewski v. W.B. Furze Corp., 308 N.J. Super. 270, 279 (App. Div. 1998) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72 (App. Div. 1989)).
Unbecoming conduct has been defined as
conduct "which has a tendency to destroy public respect for [government] employees and confidence in the operation of [public] services." Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (citation omitted). Unbecoming conduct may include "any conduct which adversely affects the morale or efficiency of the [department.]" Ibid. (citation omitted). The touchstone of the determination lies in the certificate holder's "fitness to discharge the duties and functions of one's office or position." [Grossman, supra,] 127 N.J. Super. [at 29].Unbecoming conduct "need not 'be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.'" Karins, supra, 152 N.J. at 555 (quoting Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)).
[In re Young, 202 N.J. 50, 66 (2010) (first three alterations in original).]
In determining whether a teacher has engaged in such conduct, the Commissioner appropriately takes into account "'any harm or injurious effect which the teacher's conduct may have had on the maintenance of discipline and the proper administration of the school system.'" Grossman, supra, 127 N.J. Super. at 30 (quoting In re Fulcomer, 93 N.J. Super. 404, 422 (App. Div. 1967)). The Commissioner also considers "the nature and gravity of the offenses under all the circumstances involved, [and] any evidence as to provocation, extenuation or aggravation." Fulcomer, supra, 93 N.J. Super. at 422.
"Insubordination" has been found in an employee's "'wil[l]ful refusal of submission' to the authority of [his or] her superiors." Laba v. Bd. of Educ, 23 N.J. 364, 385 (1957) (quoting Harrison v. State Bd. of Educ, 134 N.J.L. 502, 505 (Sup. Ct. 1946)); see also Ricci v. Corp. Express of the East, Inc., 344 N.J. Super. 39, 45-46 (App. Div. 2001) (defining insubordination as "a 'willful disregard of an employer's instructions . . .' or an 'act of disobedience to proper authority'" (quoting Black's Law Dictionary 802 (7th ed. 1999))), certif. denied, 171 N.J. 42 (2002).
Having reviewed Tuitt's appellate arguments in light of the record before us and the applicable law, we find no basis to disturb the Commissioner's determination to remove Tuitt as a teacher. We do not reweigh the evidence based on the parties' appellate arguments and make our own factual determinations de novo, as Tuitt would have us do. As we have explained, our duty is to ensure that the factual findings made by the administrative agency are reasonably grounded in the record.
"[T]he choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001) (citing Renan Realty Corp. v. State Dep't of Cmty. Affairs, Bureau of Hous. Inspection, 182 N.J. Super. 415, 421 (App. Div. 1981)). That is especially true with respect to the factfinder's credibility determinations, inasmuch as the factfinder had the opportunity to observe the witnesses and their demeanor during their testimony. H.K. v. State, 184 N.J. 367, 384 (2005) (citing Clowes, supra, 109 N.J. at 587).
Nevertheless, in concluding that there was a sufficient factual and legal basis for the Commissioner's decision to remove Tuitt, we have discounted the Commissioner's determinations with respect to several of the charges against Tuitt. First, charge ten accused Tuitt of conduct unbecoming a teaching staff member for communicating with students via telephone without parental permission or the permission of the principal in the 2010-2011 academic year. He was only charged with having contact with N.S. The ALJ found that there was insufficient evidence to sustain that charge. However, even though it was not charged by the District, the ALJ found that Tuitt had unauthorized contact with J.J. While there was evidence to sustain such a charge had it been made, we find it fundamentally unfair to base a finding of conduct unbecoming on uncharged conduct.
Second, the ALJ made several inconsistent findings with regard to charge six, which she dismissed, and charge eleven, which she sustained. The District acknowledges the inconsistency, and seeks to have us reverse the finding in charge six or remand for reconsideration. We would ordinarily remand for clarification, but need not do so here because there is a sufficient basis to uphold the dismissal without those charges. For the same reason, we need not reach the merits of the District's cross-appeal. Tuitt's remaining arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We are convinced that the remaining findings provide a more than sufficient basis for removal without the questioned charges. For example, with respect to charges one, two, and five, the ALJ found that, during the 2006-2007 academic year, Tuitt urinated in the classroom, directed students to transfer that urine, and consequently exposed his students to bodily waste. With respect to charges three and four, the ALJ found that, on September 29, 2010, Tuitt "released urine in and around a trash can in his classroom with three students and Custodian Alva nearby outside the classroom door," and that in doing so he had "removed his penis and urinated in the trash can." The ALJ added that, "even if [] Tuitt was unable to travel to a bathroom before he had to release urine, which was not supported by credible admissible evidence, he failed to report his release of urine and/or [to ensure] that the urine in a trash can in his classroom was cleaned."
Charge nine accused Tuitt of conduct unbecoming a teaching staff member for transporting students in his van without permission. The ALJ found that he had done so on several occasions without permission. In addition, charge thirteen, which involved inappropriate email communication with a student and the student's parent, and charge fourteen, which involved an inappropriate email communication with a student's parent, were sustained by the ALJ and the Commissioner, as were aspects of charges fifteen and sixteen, which involved violations of the District's policies.
Those actions provide a sufficient basis for the Commissioner's decision to remove Tuitt. Consequently, we affirm the Commissioner's order removing Tuitt from his employment by the District.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION